This article aims to frame the discussion of general and aggravated damages merited in cases of sexual abuse or sexual battery (which for ease of reference will be referred to as “sexual violence lawsuits”). The undertone of sexual violence in the personal injury context augments the appropriate level of general damages in these cases. It is evident upon review of the jurisprudence, that claims for general damages in sexual violence lawsuits cannot be assessed in the same way as personal injury claims related to slip and falls or motor vehicle accidents. There is an added dimension to sexual violence lawsuits, which results in a particularly negative effect upon the plaintiff, and ought to be compensated accordingly.
In arguing for general damages in sexual violence lawsuits, it is essential for counsel to keep in mind that as opposed to negligence, or even assault or battery cases, there is a dehumanizing undertone to sexual violence which sets these types of lawsuits apart. Sexual violence lawsuits are an evolving area of law and these cases leave room for counsel to advocate on behalf of the plaintiff in order to convey to the trier of fact an understanding of the pernicious nature of the injury. The augmentation to general damages in sexual violence lawsuits is sometimes referred to as aggravated damages, though the manner in which they are distinguished from general damages is often unclear.
Legislation establishes that after a conviction, it is presumed in a civil matter that sexual results in emotional distress and is compensable on that basis.[1] Regardless of a conviction, intentional torts such as assault and battery are actionable without proof of causation or damage, but the legislation states that “any award which is beyond a nominal figure requires proof of loss occasioned by the defendant.”[2]
In addition to physical injury, sexual violence often results in psychological injury. To add to the physical and psychological injuries, sexual violence also has an intangible, underlying aspect, which differentiates it from other torts. As Zando v. Ali, shows, proof of loss on the part of the plaintiff can, at times, be established on the basis of the humiliation and degradation caused to the plaintiff by the defendant’s sexually violent acts.
In Zando v. Ali, the trial judge’s assessment of general damages in the amount of $175,000 was upheld based on the complainant’s reported of feelings of shame, guilt, humiliation, degradation, and her feelings of betrayal and mistrust caused by being sexually assaulted by her colleague.
Justice van Rensburg for the Ontario Court of Appeal stated as follows:
The trial judge’s determination of damages did not depend on a finding that the respondent suffered long-term psychological trauma from the one incident of sexual assault, nor in my view would it be an error in principle for a trial judge to assess damages at that level in the absence of evidence of such long-term injury (emphasis added).[3]
What the Court is highlighting here is that damages for sexual battery or assault are not solely to compensate for physical or psychological injuries. General damages fulfill a range of functions, including “the recognition of the humiliating and degrading nature of the wrongful acts.”[4]
This recognition is a primary purpose for awarding general damages in sexual violence lawsuits. In addition to the pain and suffering caused to the plaintiff, recognition of the humiliating and degrading nature of sexual violence is properly upheld by an appropriate award of general damage.
Many Courts have made astute and helpful comments with regard to the particularly pernicious nature of sexual violence. For example, Chief Justice McLachlin, writing for the majority of the Supreme Court of Canada in Non-Marine Underwriters, stated that one of the purposes of the law of battery is to protect an individual’s physical autonomy.[5] The Supreme Court goes on to observe that a battery is a violation of the victim’s right to exclusive control her person and constitutes a violation of the victim’s bodily integrity and “the loss is identified with the victim’s personality and freedom.” Most importantly, McLachlin C.J. states, “victims of such attacks, tend to feel resentment and insecurity if the wrong is not compensated.”[6]
Justice Cory for the Supreme Court of Canada has stated the following with regard to sexual assault:
It cannot be forgotten that a sexual assault is very different from other assaults. It is true that it, like all the other forms of assault, is an act of violence. Yet it is something more than a simple act of violence. Sexual assault is in the vast majority of cases gender based. It is an assault upon human dignity and constitutes a denial of any concept of equality for women (emphasis added).[7]
The British Columbia Court of Appeal has also articulated important considerations facing the Court when assessing the appropriate quantum of general damages:
What is fair and reasonable compensation for general damages, including aggravated damages, in [such a] case is not easy to say. This is an evolving area of the law. We are just beginning to understand the horrendous impacts of sexual abuse. To assess damages for psychological impact of sexual abuse on a particular person is like trying to estimate the depth of the ocean by looking at the surface of the water. The possible consequences of such abuse presently are not capable of critical measurement (emphasis added).[8]
With regard to the function of general damages, Justice Cromwell, writing for a unanimous Nova Scotia Court of Appeal, stated the following: “an important function of the non-pecuniary damage award in a case of sexual battery is to demonstrate, both to the victim and to the wider community, the vindication of these fundamental, although intangible, rights which have been violated by the wrongdoer” (emphasis added).[9]
For many of these reasons, it made good sense when Justice C.M. Smith in D.S. v. Quesnelle stated that the “cap” of non-pecuniary damages articulated by the Supreme Court of Canada in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 should not apply.[10] In that case, Justice Smith awarded the plaintiff $400,000 in general and aggravated damages.
In assessing non-pecuniary damages for sexual assault, the court must first consider the important characteristics of the case to define the types of cases that should be considered for comparison purposes in establishing an appropriate range, and then select an amount of damages within that range, based on the features of the particular case.[11] The Ontario Court of Appeal has made it clear that it is the total impact on a plaintiff’s life, and not just the injuries, which is relevant to assessment of general damages.[12]
Critical to any assessment of general damages is the trier of fact’s view of the aggravating features. The Supreme Court of Canada has listed these features as follows:
a. The circumstances of the victim at the time of the events, including factors such as age and vulnerability;
b. The circumstances of the assaults, including their number, frequency and how violent, invasive and degrading they were;
c. The circumstances of the defendant, including age and whether he or she was in a position of trust; and
d. The consequences for the victim of the wrongful behaviour, including ongoing psychological injuries.[13]
In addition to the aggravating factors outlined by the Supreme Court, counsel can emphasize the dehumanizing undertone of sexual violence when arguing for a higher quantum of general damages. Not only can the higher quantum be justified by the impact upon the plaintiff physically and mentally, but also because of the violation of personal autonomy (Non-Marine Underwriters), assault upon human dignity (R. v. Osolin), and inherently violent, degrading nature of the act (D.S. v. Quesnelle). Courts have been willing, and are able, to recognize sexual violence with appropriate, i.e., sizable, awards of general damages.
Although it makes sense that more egregious acts, and multiple instances of sexual violence merit higher general damages awards, any lawsuit related to sexual violence presents the opportunity to persuade the Court that the gravity of sexual violence merits a higher quantum of general and aggravated damages. The Courts’ emphasis on the horrendous impacts of sexual violence ought to create a buoying effect on the general damages awarded in all sexual violence lawsuits. Ample precedent, provided by the highest courts of Canada, supports the argument that the nefarious nature of sexual violence requires a substantial award.
In conclusion, it is useful to keep in mind the underlying reasons for and purposes of awards for general damages in sexual violence actions. As demonstrated in the quotes above, Courts have been alive to the seriousness of sexual violence for society. The civil litigator’s role is to advocate for the court to take these principles into account in each sexual violence lawsuit.
[1] Victims’ Bill of Rights, 1995, SO 1995, c 6, Section 3(2).
[2] Umlauf v. Umlauf , 2001 CanLII 24068 (ON CA) (“Umlauf”) at para. 7.
[3] Zando v. Ali, 2018 ONCA 680 at para. 19.
[4] Nova Scotia (Attorney General) v. B.M.G., 2007 NSCA120, at para. 135.
[5] Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24 (CanLII), [2000] 1 S.C.R. 551at para. 10.
[6] Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24 (CanLII), [2000] 1 S.C.R. 551at para. 14.
[7] R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at para. 669.
[8] S.Y. v. F.C.G., 1996 CanLII 6597 (BC CA), at para. 55.
[9] Nova Scotia (Attorney General) v . B.M.G., 2007 NSCA 120 (CanLII).
[10] D.S. v. Quesnelle, 2019 ONSC 3230 at para. 41.
[11] Nova Scotia (Attorney General) v. B.M.G., 2007 NSCA120, at paras 136 to 140.
[12] Koukounakis v. Reid, 1995 CanLII 621 (ON CA) at page 7.
